New Labour's Enabling Act

War Hero

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Hardly anyone has noticed, but British democracy is sleepwalking into a sinister world of ministerial power

LAST WEEK all eyes were on the House of Commons as it debated identity cards, smoking and terrorism. The media reported both what MPs said and how they voted. For one week at least, the Commons mattered.
All the more peculiar then that the previous Thursday, in an almost deserted chamber, the Government proposed an extraordinary Bill that will drastically reduce parliamentary discussion of future laws, a Bill some constitutional experts are already calling â€œthe Abolition of Parliament Billâ€.

A couple of journalists noticed, including Daniel Finkelstein of The Times, and a couple more pricked up their ears last week when I highlighted some biting academic criticism of the Bill on the letters page of this paper. But beyond those rarefied circles, that we are sleepwalking into a new and sinister world of ministerial power seems barely to have registered.

The boring title of the Legislative and Regulatory Reform Bill hides an astonishing proposal. It gives ministers power to alter any law passed by Parliament. The only limitations are that new crimes cannot be created if the penalty is greater than two years in prison and that it cannot increase taxation. But any other law can be changed, no matter how important. All ministers will have to do is propose an order, wait a few weeks and, voilÃ , the law is changed.

For ministers the advantages are obvious: no more tedious debates in which they have to answer awkward questions. Instead of a full dayâ€™s debate on the principle of the proposal, detailed line-by-line examination in committee, a second chance at specific amendment in the Commons and a final debate and vote, ministers will have to face at most a short debate in a committee and a one-and-a-half hour debate on the floor. Frequently the Government will face less than that. No amendments will be allowed. The legislative process will be reduced to a game of take-it-or-leave-it.

The Bill replaces an existing law that allows ministers to relieve regulatory burdens. Business was enthusiastic about that principle and the Government seems to have convinced the business lobby that the latest Bill is just a new, improved version. What makes the new law different, however, is not only that it allows the Government to create extra regulation, including new crimes, but also that it allows ministers to change the structure of government itself. There might be business people so attached to the notion of efficiency and so ignorant or scornful of the principles of democracy that they find such a proposition attractive. Ordinary citizens should find it alarming.

Any body created by statute, including local authorities, the courts and even companies, might find themselves reorganised or even abolished. Since the powers of the House of Lords are defined in Acts of Parliament, even they are subject to the Bill.

Looking back at last weekâ€™s business in the Commons, the Bill makes a mockery of the decisions MPs took. Carrying ID cards could be made compulsory, smoking in oneâ€™s own home could be outlawed and the definition of terrorism altered to make ordinary political protest punishable by life imprisonment. Nor will the Human Rights Act save us since the Bill makes no exception for it.

The Bill, bizarrely, even applies to itself, so that ministers could propose orders to remove the limitations about two-year sentences and taxation. It also includes a few desultory questions (along the lines of â€œam I satisfied that I am doing the right thing?â€) that ministers have to ask themselves before proceeding, all drafted subjectively so that court challenges will fail, no matter how preposterous the ministerâ€™s answer. Even these questions can be removed using the Billâ€™s own procedure. Indeed, at its most extreme, in a manoeuvre akin to a legislative Indian rope trick, ministers could use it to transfer all legislative power permanently to themselves.

The Bill raises fundamental questions about the role of Parliament. Ministers, egged on, some suspect, by the Civil Service, treat Parliament as a voting machine. Its job, in their view, is merely to give legal cover to whatever ministers want to do. They treat debate and deliberation as mere chatter before the all-important vote. They see no great difference between full parliamentary procedure and a truncated procedure for statutory instruments because, for them, the result either way is the same, that ministers receive legal authority for their plans. Just as a perfect criminal statute for ministers appears to be one in which everything is illegal so that prosecutors have discretion to put anyone in front of a court, a perfect authorising statute is one that makes lawful any ministerial act or policy.

Some of us have a different view. We think that deliberation and debate matter, that they are part of what makes parliamentary democracy work and make the new laws we pass legitimate. Deliberation improves legislation but more importantly, it forces governments to give reasons for their proposals that go beyond their narrow self-interest. In private meetings of the governing party, or in the Cabinet, or above all in telephone calls between ministers and special advisers, purely partisan reasons can hold sway. But in public, especially where there is real debate, ministers have to offer reasons that might persuade others. If they cannot think of any such reasons, their embarrassment constrains them. As the political scientist Jon Elster says, even hypocrisy can have a civilising effect.

The Government claims that there is nothing to worry about. The powers in the Bill, it says, will not be used for â€œcontroversialâ€ matters. But there is nothing in the Bill that restricts its use to â€œuncontroversialâ€ issues. The minister is asking us to trust him, and, worse, to trust all his colleagues and all their successors. No one should be trusted with such power.

As James Madison gave warning in The Federalist Papers, we should remember when handing out political power that â€œenlightened statesmen will not always be at the helmâ€. This Bill should make one doubt whether they are at the helm now.

David Howarth is Liberal Democrat MP for Cambridge and Reader in Law at Cambridge University

We should worry. This Government needs to be voted out of office before they abolish elections. 'Well, we've been in power so long and everybody likes Tone and Gordo anyway and the cost of an election could be better spent on new ministerial cars.....'

Midshipman

The sad thing is that the tossers who voted this lot in last time and complaining vociferously now will vote them in again and still complain.

The popoulation needs to wake up to the fact that politicians (of all persuasions)are in it for the career (money) not for the good of their electorate and they will do anything they can do to enhance their period in office.

We vote them in ostensibly to protect/project our democracy. There's no democracy, these MP's vote the way the whips tell them for fear of losing their jobs. It would appear that all MPs have skeletons in their cupboards that are waved by the whips if an MP should appear to waiver.

Lantern Swinger

Sadly this behaviour is typical of any "long serving" government. basically they have been in office for so long they have run out of ideas to keep them "in".

And "people" are thick as a whale ommlette.

"individuals" are smart but "people" are not.

Now i want more than anything to get rid of Labour in favour of a government who will do something posative for Britain. without fear of retribution from the minorities or tree huggers and get the country back on track. But honnestly - look at the competition.. leadership challenges every other month, or so far left the fell off the podium... or hippies....
Perhaps we of RumratioN and Arrse should form a party (non serving members obviously) and offer a serious alternative to Gordo and his magic euro army?

Failing that - last one out turn off the lights?

having said all that, bet its not long until an all asian party springs up and gets serious support - which i beleive could happen.

Badgeman

Political apathy is the real enemy. People don't see a genuine policy choice at the moment, just a choice of management team, so they don't bother to vote. An Islamic Party is undoubtedly not too far away - nothng wrong with that - but if you don't wish to live under an Islamic governemnt all you need to do is vote for someone else. Happily we live in a democracy. No vote, no voice!

Badgeman

Absolutely, look at the alternatives, they are all making the same mistakes that have been made in the past and I think people don't care any more, there aren't any good leaders or characters to get people attention and get them interested in the debates or the politics.
Look at PMQ's on Wednesdays', loads of noise, but what comes of it, nothing, the questions are given to the PM well in advance and most of them aren't questions at all but statements read out by MP's using the opportunity and the audience to get some points in.
On the telly week after week, we see ministers with no charisma or character, who trot out the party line and the same old spiel in some monotone party issue voice.
What makes me wonder is the old fox hunting debate, I coudn't give a toss one way or another, all the people I know feel the same, its not important to us. But TB went on the telly and said 'the people want it banned' and this government has expended so much time, energy, publicity and probably money on getting it banned, why don't they direct this energy, publicity and money on say stopping old people freezing in the winter, helping kids from getting abused, making sure everyone has access to a dentist, or a doctor, or a school place !

Banned

The comments above are very interesting. I should like however to make some observations relating to the Legislative and Regulatory Reform Bill which are relevant.

Clause 3(2)(e) of the Bill makes clear that this Bill could NOT be used to impinge upon the exercise of the existing rights and freedoms enjoyed by individual British subjects. Clause 5(1) limits changes to taxation: it could not be used to extend or to increase taxation. Clause 10(1) requires that a Minister must introduce a proposed amendment to primary legislation (ie an Act of Parliament) via secondary legislation in the specific form of a Statutory Instrument (SI). This takes one of three forms: negative, affirmative and super-affirmative. In essence this means that Ministerial fiat alone cannot change law: it requires the consent of Parliament either by a majority voting in favour or by MPs not cancelling the legislation (as in a negative SI resolution). Here, if they elect to do nothing, the legislation would automatically be enacted. Under clause 11, a Minister must consult and be willing to amend the proposed SI. I do have caveats about the Minister being allowed to decide who are the appropriate consuntees however. All said, a hostile political majority in Parliament could effect equivalent changes to legislation but the process would simply take longer. One should also bear in mind that the so-called Henry VIII clauses already afford a Minister, where permission is given in a specfic Act of Parliament, to legislate by fiat.

Lantern Swinger

Although living Australia what happens in the UK will not affect me, I can't turn a blind eye to it.

I have been a Labour man all my life and since leaving the mob in Oz and have held positions of Job rep, Union Management Committee and a member of the Oz Labour Party, but I'm afraid that if I was living in the UK my allegience to Labour would be sorely tested. Their pathetic performance would make me either non voter or look for another Party. Being a non voter defeats the purpose of an election as those that don't vote deserve what they get.

Fortunately we have compulsory voting here, although that can be over come by stuffing up your ballot form, thereby voting informally. Apathy still shows it's ugly head.

Lantern Swinger

(2) Those conditions are thatâ€”
(a) the policy objective intended to be secured by the provision could not
be satisfactorily secured by non-legislative means;
(b) the effect of the provision is proportionate to the policy objective;
(c) the provision, taken as a whole, strikes a fair balance between the
public interest and the interests of any person adversely affected by it;
(d) the provision does not remove any necessary protection;
(e) the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to
continue to exercise.

mean in practice? They are so vague and wishy-washy. The reference to reasonable expectations in (e) is particularly vague. Suppose this bill had been used to bring about the hunting ban. Is the freedom to hunt something that a person "might reasonably expect to continue to exercise"? What if the Government announced that it would ban hunting in five years' time, and then banned hunting using the procedure. Would they still be reasonable in expecting to be able to continue exercising that freedom given that the Government has told them in plenty of time that it would be banned? What is a necessary protection?

What this does is enable the Government to push legislation through without debate. You just have to look at the non-existent media attention on this bill, a bill which seeks to overthrow the present legislative system, to see how easy it would be to sneak something in without people noticing.

As for the power of Parliament to annul the delegated legislation, we all know that the devil of legislation is in the detail, but Parliament has no power to amend, but has to take or leave what the Government proposes. More worryingly, given the recent Government defeats in the Commons:

The House of Commons last annulled a Statutory Instrument on 24th October 1979 (the Paraffin (Maximum Retail Prices) (Revocation) Order 1979 (S.I. 1979, No. 797)).

The Paraffin bloody Maximum Retail Prices bleeding Revocation Order 1979? So we are putting our trust, risking out way of life, our liberties and freedoms, on a procedure that hasn't been successfully used by the Commons in 25 years?

Banned

Good point Hammockhead. The point I essentially wished to make was that MPs do have the power to annul an SI if they choose (or if their constituents apply pressure) but as to whether they exercise that power, well, that is another matter.

Clause 3(2)(e) means that HMG would need to introduce primary legislation to give effect to any policy which interfered with a right or freedom, such as hunting, but not, say, for abolishing a regulation that imposed a burden on business, such as standards to ensure that children's clothes are not highly flammable. The interesting area is grey areas such as hitting children. Acts which constitute "reasonable" chastisement for children would constitute assault if exercised against an adult, so this "right" could be abolished on grounds of the need for consistency in criminal law - which of course is already inconsistent.

Personally I am unhappy with this Bill. Although it would save money in terms of Parliamentary and civil service time (theoretically facilitating reductions in the civil service) I would personally prefer to pay for these additional costs and retain full democratic accountability. But who am I - just a Labour Party supporter!

Banned

The potential to abuse is there, but then with our unwritten constitution potentially any government can do as it pleases subject to international law. The Poll Tax illustrated that point: there was no mandate to introduce the legislation in the form it finally appeared, yet rarely attending members of the unelected House of Lords made it a Statute.

Frankly the Treaty of Rome ought to be a greater cause of concern but rather oddly, is not. :roll:

Lantern Swinger

QED - The UK needs a written constitution (written in plain English) and an effective bill of rights. The Yanks have given us all the lessons needed to make sure that our version would work. I'm happy with the old maxim that the thing that should disqualify anyone from taking on public office is that they want to do it in the first place.